House v. Commonwealth of Kentucky, No. 2007-CA-000417-DG, 2008 WL 162212 (Ky. Ct. App. Jan. 18, 2008).

The Kentucky Court of Appeals recently allowed a criminal defendant access to the source code for the breathalyzer device used to develop probable cause for his arrest for operating a motor vehicle under the influence of alcohol with the aggravating factor of a level over 0.18. The lower court quashed the subpoena on motion by the Commonwealth of Kentucky and CMI, Inc. The criminal defendant, Lennie House, appealed, and the Circuit Court had affirmed.

At a hearing on the Commonwealth’s and CMI’s motion to quash the subpoena, House produced a computer software engineering expert who testified that if he had the source code for the device, he could examine the code for any bugs or flaws that might have produced an incorrect blood alcohol reading. However, the district court granted the motions to quash and the circuit court affirmed.

But the Kentucky Court of Appeals reversed, finding that the lower courts erred because the Commonwealth and CMI failed to make the required showing under the Kentucky Rules of Criminal Procedure that the subpoena was unreasonable or oppressive. The court noted that the request is not unreasonable because its purpose is to challenge the validity of the readings produced by the Intoxilyzer 5000, which is anticipated will be used at trial by the Commonwealth to prove the drunk driving charge and the aggravating factor. In addition, the court found that the request for the source code is not oppressive because the code can be produced on a CD-ROM with minimal expense.

The Court of Appeals rejected the argument asserted by the Commonwealth and CMI that the computer code is a protected trade secret and that this should weigh against disclosure. In reaching this conclusion, the court noted that House had indicated his willingness that he, his attorney, and his expert witness would enter into a protective order barring sharing of the code or its contents with any non-party. Moreover, the court observed that the protective order may also include language requiring that any copies or work product generated by House’s expert be returned to CMI upon completion of his review of the code. Finally, the court noted that the possibility of civil and/or criminal penalties for violating the protective order “should obviate any concern CMI may have with respect to protection of its source code.”

This is not the first court decision to reach the conclusion that a criminal defendant has a right to inspect the source code for a breathalyzer device. For example, in a similar case in 2007 the Minnesota Supreme Court ordered production of the source code for the Intoxilyzer device, relying in large part on the existence of a contract between the state and CMI specifying that the state owned the source code for the device and on the express language of the RFP in which CMI agreed to provide to attorneys representing individuals charged with crimes using evidence from the device any information necessary to comply with a court order. See Underdahl v. Commissioner of Public Safety, 735 N.W.2d 706, 712-13 (Minn. 2007). Arguing that the source code is confidential, copyrighted and proprietary, the state had asked for a “writ of prohibition” barring the source code from being released. But the court rejected that request on the basis that “[a] writ of prohibition is an extraordinary remedy and is only used in extraordinary cases,” and the facts here did not merit such a remedy. See id. at 710.